Advisory Opinion No. 2007-46 Advisory Opinion No. 2007-46 Re: Elizabeth A. Crowley, MMC QUESTION PRESENTED The petitioner, City Clerk, Clerk for the City of Central Falls, a municipal appointed position, requests an advisory opinion as to whether it would violate the Code of Ethics for her to seek election to and serve on the Central Falls City Council, given that she intends to retire as City Clerk on January 3, 2008, and if elected to City Council, would not be sworn into office until January 7, 2008. RESPONSE It is the opinion of the Ethics Commission that the petitioner, City Clerk for the City of Central Falls, may seek election to the Central Falls City Council in the 2007 election, while simultaneously employed as City Clerk, given that she intends to retire as City Clerk on January 3, 2008, and if elected to City Council, would not be sworn into office until January 7, 2008. The petitioner represents that she has been employed by the City of Central Falls for approximately 40 years and has served as that municipality’s City Clerk since 1996. Under the Central Falls City Charter, as City Clerk, the petitioner also serves in the positions of Purchasing Agent and Clerk of the City Council. See Charter of the City of Central Falls Article IV, §§ 200 and 900. The petitioner states that her duties as City Clerk include the following: managing all activities of the City Clerk’s Office; serving as the Purchasing Agent for the City; serving the City Council and the Board of License Commissioners; acting as the Clerk of the Probate Court; being responsible for the custody of all official records of the city and serving as the recorder of deeds including all ordinances, resolutions, land records, vital records and licenses; and finally, serving as City Property Manager. The petitioner represents that as City Clerk she does not, however, have any control over the Board of Canvassers, which has its own Registrar and functions as a board entirely independent of the Clerk’s office. See Charter of the City of Central Falls Article III, §§ 100(c), 132. The petitioner further represents that in her capacity as Central Falls City Clerk she has no discretionary authority whatsoever that could affect her own candidacy or anyone else’s. The petitioner states that it is her intention to run for Central Falls City Council in the 2007 election. She states that she will retire as City Clerk on January 3, 2008, and that, if she is successfully voted into office as a city council member, she would be sworn into office on January 7, 2008. Based on all of these representations, she asks whether there is any violation of the Code of Ethics in her seeking election to City Council prior to her retirement as City Clerk in January of 2008. Under the Code of Ethics, a public official or employee may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). An official will have an interest in substantial conflict with her official duties if it is likely that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official’s activity, to the official, a family member, employer, business associate, or a business that she represents. See R.I. Gen. Laws § 36-14-7(a). Also, R.I. Gen. Laws § 36-14-5(b) prohibits a public official or employee from accepting other employment that will either impair her independence of judgment as to her official duties or employment or require her to disclose confidential information acquired by her in the course of her official duties. Finally, R.I. Gen. Laws § 36-14-5(d) provides that a public official may not use her office for pecuniary gain, other than provided by law, for herself, a family member, employer, business associate, or a business that she represents. The Code of Ethics does not create a blanket prohibition against municipal employees running for elective office, whether at the state or municipal level. See A.O. 99-74 (opining that the Confidential Secretary to the Lincoln Superintendent of Schools was not prohibited by the Code of Ethics from running for a position on the Lincoln School Committee and that, furthermore, if petitioner was elected, she could continue to serve as Confidential Secretary until taking office on the School Committee). See also A.O. 200-61 (opining that an employee of the Foster School Department may seek election to and serve on the Foster Town Council). The law does provide, however, that persons subject to the Code may not use their public positions for private gain or financial advantage and may not participate in public decisions when their independence of judgment has been impaired because of a private interest. See R.I. Gen. Laws §§ 36-14-5(a),(b) and (d). The fact that the petitioner may campaign for the office of City Council while simultaneously serving as the City Clerk does not, in and of itself, present an inherent conflict of interest under the Code of Ethics. Accordingly, if elected, she may continue to serve in her present capacity until she takes office. The petitioner is cautioned, however, that this opinion is based on her representation that she will not be serving as City Clerk and City Council Member simultaneously; if these circumstances are to change, the petitioner is advised to seek further guidance from the Ethics Commission. As City Clerk, the Petitioner may perform ministerial tasks relating to the election in which she is participating as a candidate. See A.O. 98-118 (opining that the Deputy Clerk for the Town of Scituate may continue to serve in that position while running for the office of Town Clerk provided that she recuse from tasks, other than ministerial, relating to the election in which she is participating as a candidate). Because her likely responsibilities, if any, are ministerial, not substantive, given her representation that she does not have any control over the Board of Canvassers, the Code of Ethics does not bar her from serving in that position while she seeks election to the City Council. However, in the event her responsibilities as City Clerk involve her in matters that might impact the electoral process in which she is involved as a candidate, the Petitioner should recuse herself from participating in those matters. Notice of recusal must be filed with the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6. Furthermore, the petitioner is cautioned that provisions of the Code of Ethics do prohibit her from using any public time or resources to support her candidacy. See A.O. 2007-33 (opining that a Program Coordinator for Rhode Island Housing may run for a position on the Central Falls City Council, but must refrain from using public time or resources to support her candidacy). All campaign-related activity must be conducted on her own time and without the use of Central Falls town resources. Finally, the Petitioner is advised that this opinion solely addresses whether the Code of Ethics prohibits her, as a municipal appointed employee, from seeking or holding office as a member of the Central Falls City Council. This opinion does not address whether any other statutes, rulings or policies, specifically from the State Board of Elections, the Attorney General's Office, or the Town of Central Falls prohibit such activity. Code Citations : 36-14-5(a) 36-14-5(b) 36-14-5(d) Other Law Cited : Charter of the City of Central Falls Article III, §§ 100(c), 132; Article IV, §§ 200 and 900 Related Advisory Opinions : A.O. 2007-33 A.O. 99-74 A.O. 98-118 Keywords: Candidate Political Activity